When intelligence accountability backfires: How states’ strategic legal justifications undermine international law

This article examines the paradoxical effects of international legal accountability processes on the international law of intelligence. In response to increasing exposure of their intelligence activities, liberal democracies have shifted from a national security culture of secrecy to one of legal rationalisation, offering legal justifications to defend and legitimate contested practices. Rather than improving compliance, accountability processes have enabled states to strategically reshape legal norms to accommodate their preferred policies. Focusing on how legal justifications affect international law’s constraining function, the article analyses the effects of legal justifications on three dimensions of legal norms: obligation, precision and delegation. Intertwining doctrinal legal analysis with International Relations scholarship on rhetorical and justificatory approaches to international law, it identifies four causal mechanisms through which strategic legal justifications decrease law’s constraining power on state behaviour and facilitate norm evasion. The article demonstrates how strategic uses of international law for legitimation purposes can gradually alter legal norms without formal changes to legal texts or institutions, ultimately decreasing international law’s constraining power. Shedding light on the limits and risks of legalisation as a regulatory strategy, these findings raise important questions about the effectiveness and adequacy of legal accountability strategies, particularly strategic litigation, in inducing behavioural change.